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“Gay Cake” case – freedom of expression also means freedom NOT to express

Earlier this year, we wrote about the "Gay Cake" case and how it was due to be heard by the Supreme Court. In our previous article, we set out the background and explained that the Supreme Court were due to consider (and balance) the rights conferred upon Mr and Mrs McArthur (the owners of Ashers Bakery) by the European Convention on Human Rights (ECHR) against Mr Lee's right not be discriminated against on the basis of his sexual orientation.

Mr Lee asked Ashers Bakery to bake a cake iced with the message "support gay marriage". Mr and Mrs McArthur refused on the basis that they profoundly disagree with gay marriage as devout Christians.

The courts in Northern Ireland, considering their own equality legislation, considered that Mr and Mrs McArthurs' refusal to bake the cake for Mr Lee was directly discriminatory. The Supreme Court took a different view: they considered that the reason that the McArthurs refused to bake the cake was that they fundamentally disagreed with the message that they were being asked to ice on the cake, not because Mr Lee was gay and/or was associated with the gay community. They would have baked a cake for Mr Lee without that message (and indeed, had served Mr Lee in the past). The Supreme Court decided that forcing the McArthurs to express a viewpoint with which they fundamentally did not agree would be an infringement of their ECHR rights.

In her judgment, Lady Hale explains (at para 52) that "the right to freedom of expression does not in terms include the right not to express an opinion but it has long been held that it does". In considering case law on the matter, she makes reference to Lord Dyson's judgment in RT (Zimbabwe) v Secretary of State for the Home Department [2012] UKSC 38; [2013] 1 AC 152, where he stated: "(para 42) nobody should be forced to have or express a political opinion in which he does not believe". It is of note that supporting (or not supporting) gay marriage was very much the topic of political debate at the time the cake order was made – legalising gay marriage had been rejected for a third time by Northern Irish government only a week before.

Interestingly, a judgment on a similar issue has recently been handed down by the Supreme Court of the United States. In the Masterpiece Cakeshop case, the US Supreme Court gave consideration to the difference between a cake shop refusing to bake cakes with messages demeaning gay people and gay marriages, and a cake shop which refused to bake a wedding cake for a gay customer. The facts of the case were different nonetheless, two of the judges "drew a clear distinction between an objection to the message on the cake and the customer who wanted the cake" (Lady Hale judgment, para 61).

The outcome of the "Gay Cake" case has led to much criticism of the Equality Commission for Northern Ireland, who funded Mr Lee's case. Critics argue that the money spent funding (and losing) this case could have been much better spent promoting equality and diversity in Northern Ireland, where same sex marriage is still illegal. However, the decision has been welcomed by free speech activists and for those who claim that 'political correctness has gone mad'. This judgment evidences that whilst it is always important to respect each other and not to discriminate, one should not be required to put aside their own feelings on a matter just because those feelings might be at odds with someone else's feelings.

There are those who worry that the decision will open the door for people to discriminate in the provision of goods and services on the basis of their own beliefs and right to freedom of expression. This will no doubt lead to further consideration of what "express" truly means. In the Masterpiece Cakeshop case, it is of note that the baker won on the basis that baking a wedding cake for a gay couple was in itself, an expression of support for gay marriage. Watch this space…